Professional Documents
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RULE 13 Two Columns
RULE 13 Two Columns
RULE 13- FILING AND SERVICE OF PLEADINGS, On November 26, 1999, the appellate court issued a
JUDGMENTS AND OTHER PAPERS Resolution[4] dismissing the appeal of the petitioner for his failure
to file his brief. A copy of the resolution was sent by registered
mail to the petitioner’s counsel, but the said resolution was
Sec. 1. Coverage returned to the court with a notation stamped on the envelope
Section 1. Coverage. — This Rule shall govern the filing of all “Return To Sender, Moved Out.”[5] The CA then had a separate
copy of the notice served by registered mail on the petitioner at his
pleadings and other papers, as well as the service thereof, except
office address, but the same was returned to the CA with the
those for which a different mode of service is prescribed. (n) notation “Unclaimed.”
Sec. 2. Filing and service, defined The appellate court issued an entry of judgment and a writ of
Section 2. Filing and service, defined. — Filing is the act of execution was issued.
presenting the pleading or other paper to the clerk of court.
The petitioner filed a petition for certiorari under Rule 65 of the
Service is the act of providing a party with a copy of the pleading Rules of Court against the CA, the RTC, Sheriff Flora and
or paper concerned. If any party has appeared by counsel, service Binamira, for the nullification of the CA resolutions alleging that
upon him shall be made upon his counsel or one of them, unless he was deprived of his right to due process when the CA and the
service upon the party himself is ordered by the court. Where one RTC failed to serve the copies of the assailed resolutions and order
counsel appears for several parties, he shall only be entitled to one
The petitioner alleged, inter alia, that the CA and RTC erred
copy of any paper served upon him by the opposite side. (2a)
in issuing the assailed resolutions and order because he never
received copies of the assailed CA resolutions which were sent to
Garrucho v. Court of Appeals, G.R. No. 143791, January 14,
him at his former office at the Department of Tourism. He averred
2005 that he had resigned as Secretary of the Department of Tourism
FACTS: Petitioner Peter D. Garrucho, then Secretary of the and Chairman of the PTA as early as January 9, 1991 [7] and was no
Department of Tourism and Chairman of the Board of Directors of longer holding office thereat. [8]Since then, he had gone back to the
the Philippine Tourism Authority (PTA) requested the then private sector and held office at 417 Benpress Building, Meralco
Commissioner of Immigration and Deportation Andrea Domingo Avenue corner Echague Road, Ortigas Center, Pasig City. His
to issue Hold Departure Orders against Ramon Binamira and counsel failed to receive his copy of the CA resolution because he
transferred his office at Suite No. 23, Legaspi Suites, 178 Salcedo
Faustino Roberto. This was in connection with the investigation
Street, Legaspi Village, Makati City, and his residence to
being conducted by the Department of Justice involving anomalous Dumaguete City, Negros Occidental. He further alleged that the
transactions in government securities affecting the PTA which CA and the RTC were obliged to take judicial notice of his
entailed the loss of someP161,000,000.00. Commissioner resignation as Tourism Secretary and the appointment of his
Domingo granted the request and issued Hold Departure Order successor, his appointment as Executive Secretary by President
Fidel E. Ramos in July 1992, and his resignation from the said
position in August/September 1992.
Roberto requested the lifting of the order, and Secretary Garrucho
opposed the same. In his comment on the petition, the private respondent alleged
that the petitioner was mandated to inform his counsel of his
Roberto then filed a complaint for prohibition and damages against present address after he (the petitioner) resigned as Secretary of the
petitioner Garrucho and Commissioner Domingo in the Regional Department of Tourism. It was also the duty of the petitioner’s
counsel to inform the trial court of his new office address. The
Trial Court (RTC) of Makati City. Binamira, for his part, filed a
private respondent asserts that the petitioner must suffer the dire
complaint-in-intervention in the case. consequences of his and his counsel’s inexcusable negligence.
ISSUE: WON the petitioner was deprived of due process
Petitioner Garrucho was represented by private practitioners
Remollo & Associates, whose offices were located at Suite No. 23, HELD: The petition has no merit.
Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City. The contention of the petitioner that he was deprived of his
right to due process when the CA dismissed his appeal because of
his failure to file his brief as appellant therein has no factual and
On April 16, 1997, the trial court rendered judgment in favor of
legal basis.
respondent Binamira awarding damages and declaring the HDO
void ab initio, unconstitutional and illegal The records show that the counsel of the petitioner in the trial
court was the law firm of Remollo & Associates with offices at
The petitioner and Commissioner Domingo appealed the Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village,
decision to the Court of Appeals (CA). On March 9, 1999, the CA Makati City. Under Section 2, Rule 44 of the 1997 Rules of Civil
sent a notice by registered mail to the petitioner’s counsel directing Procedure, the counsel of the parties in the court of origin shall be
the latter to file his brief as appellant. However, the notice was considered as their counsel in the CA.[9]
returned to the court. The envelope containing the said notice was
stamped, thus: “Return To Sender, Moved Out.”[2] The CA resent Section 2, Rule 13 of the Rules of Civil Procedure provides
the notice dated March 5, 1999 to the petitioner at his office at the that if any party has appeared by counsel, service upon him shall
Department of Tourism building, Agripino Circle, Manila. The be made upon his counsel unless served upon the party himself is
notice was returned to the CA on May 5, 1999, again, having been ordered by the trial court.[10] Notice or service made upon a party
“unclaimed.” The CA issued a minute resolution [3] on June 23, who is represented by counsel is a nullity. [11] Notice to the client
1999, declaring that the service of notice on the petitioner was and not to his counsel of record is not notice in law. [12] The rule
complete as of May 5, 1999. A copy of the said resolution was admits of exceptions, as when the court or tribunal orders service
sent by registered mail to the petitioner in the Department of upon a party or when the tribunal defendant is waived.[13]
Tourism. In the absence of a proper and adequate notice to the court of
a change of address, the service of the order or resolution of a court
2
upon the parties must be made at the last address of their counsel Phil. Radiant Products v. Metrobank, G.R. No. 163569,
on record.[14] It is the duty of the party and his counsel to device a December 9, 2005
system for the receipt of mail intended for them, just as it is the FACTS: On February 1, 2001, the Philippine Radiant Products,
duty of the counsel to inform the court officially of a change in his
Inc. (PRPI) filed a complaint[3] against the Aurora Textile
address. It is also the responsibility of a party to inform the court
of the change of his address so that in the event the court orders Finishing Company (ATFC), the Philippine Savings Bank (PSB),
that an order or resolution be served on the said party to enable and the Metropolitan Bank & Trust Company, Inc. (MBTC) in the
him to receive the said resolution or order.[15] RTC of Tagum City, for specific performance and damages.
At the hearing on PRPI’s motion for clarification, the Ex- respondent. The only exception is when the service upon the party
Officio Sheriff testified that he was told by Atty. Emmanuel itself has been ordered by the court.[63]
Galicia, Jr., MBTC’s counsel, when they talked on the telephone
on August 22, 2002, to just leave the copies of the August 22, 2002 The service of the sheriff of the August 22, 2002 Order
Order with Uy.[24] through Vidanes and/or Uy on August 27, 2002 was not service on
the respondent. Neither could the respondent be deemed to have
RTCRuling been notified thereof as of August 27, 2002 for purposes of appeal.
On September 20, 2002, the RTC of Tagum City issued an
Order[25] denying MBTC’s notice of appeal and declaring the June We have examined the CA Rollo and the pleadings of the
parties in this case and find no evidence that Atty. Galicia waived
14, 2002 Decision final and executory. The RTC of Tagum City
the service of the August 22, 2002 Order of the RTC on the
gave credence to the testimony of the sheriff. MBTC filed a respondent, through counsel, as provided in the 1997 Rules of
motion to present Atty. Galicia to refute the testimony of the Ex- Civil Procedure. The initial report of the Sheriff and his testimony
Officio Sheriff. When MBTC received the September 20, 2002 before the RTC are incongruent. The initial report of the Sheriff
Order of the RTC of Tagum City, it filed an urgent motion for reads:
reconsiderationex abundanti ad cautelam[26] with a tender of the That on August 27, 2002 at about 11:45
testimony of Atty. Galicia refuting the testimony of the sheriff. a.m., I served a copy of the Writ of Execution,
together with a duplicate copy of two (2) orders
dated August 22, 2002, to Metro Bank, Davao
CA Ruling City, which was received personally by Mr.
The CA On February 4, 2004, reversed the RTC William Vidanes, Manager, and he indorsed the
Resolution which denied Metrobank’s notice of appeal ruling it said writ to the Metrobank’s General Manager,
was filed on time Mrs. Patricia Uy, in her office at second floor,
Metro Bank Building, Davao City, and she
called up and referred to their counsel thru
The CA delved into the merits of the petition and held telephone. I talked to the counsel of Metro Bank
that MBTC’s appeal from the decision of the RTC was within the thru telephone and he questioned me regarding
period therefor. The service by the Ex-Officio Sheriff on MBTC, the said execution why I served it when in fact
through Patricia Uy, of the August 22, 2002 Order of the RTC they have not yet received any order from the
denying the motion for reconsideration of its decision was not court;
made on MBTC absent a specific order from the RTC authorizing
the service thereof on the petitioner and not on its counsel. Thus, That on September 02, 2002, I went
the appellate court concluded, the RTC committed grave abuse of back again to Metro Bank, Davao City, to follow
discretion amounting to excess or lack of jurisdiction in dismissing up about the said writ but Mr. William R.
MBTC’s appeal. Vidanes informed me that Mrs. Patricia Uy, Gen.
Manager of the said bank is on leave and that he
PRPI filed a motion for reconsideration of the decision of doesn’t know of any development with regards
the appellate court. On April 27, 2004, the CA denied the motion. to the said writ because the Gen. Manager is the
[50]
one in-charge of it.[64]
PRPI, now the petitioner, filed its petition for review
on certiorari of the decision and resolution of the CA The report does not state that respondent MBTC’s
counsel, Atty. Galicia, instructed the Sheriff to leave copies of the
ISSUE: WON the notice of appeal was filed on time; WON the Orders with Vidanes or Uy.
service was properly made
When the Sheriff testified during the hearing of the
HELD: motion of the petitioner for clarification, he declared that Atty.
In nullifying the September 20 and October 4, 2002 Galicia ordered him to leave a copy of the August 22, 2002 Order
Orders of the RTC of Tagum City, the CA declared that service of of the RTC with Uy, which he did, and that Vidanes acknowledged
a copy of the assailed RTC Order on Uy on August 27, 2002 did having received a copy of the said order.[65]
not amount to service thereof on respondent MBTC. Service of
such order on the respondent took place on August 30, 2002 when However, when he testified, Atty. Galicia belied the testimony of
Atty. Galicia received his copy of the order by registered mail. the Sheriff
The petitioner asserts that the ruling of the CA is not We are inclined to believe the testimony of Atty.
correct. It posits that, as stated by the RTC, based on the testimony Emmanuel Galicia. The testimony of counsel is congruent with
of the Sheriff, Atty. Galicia, the counsel of record of the the initial report of the Sheriff that he (Atty. Galicia) questioned
respondent in the RTC, learned of the August 22, 2002 Order of the service of the orders on the bank manager of the respondent,
the RTC denying the respondent’s motion for reconsideration of its and that neither Uy nor Vidanes acknowledged receipt of copies of
decision when he informed Atty. Galicia on August 27, 2002 of the orders of the RTC. (Vidanes acknowledged receipt of only a
said order, copies of which he was serving on William Vidanes, true copy of the writ of execution.)
the Davao City Bank Manager of the respondent. According to the
Sheriff, Atty. Galicia instructed him to just leave the copy of the It was not part of the duties of the Sheriff to serve copies
order with Vidanes or Uy. The petitioner avers that, as against the of the assailed Order of the RTC on the counsel of the respondent
testimony of the respondent, that of the Sheriff, who is presumed unless directed by the said court. Such duty devolved on its
to have acted regularly, should prevail. process server. The Sheriff had a copy of the assailed order
because it was forwarded to him by the Branch Clerk of the RTC
The contention of the petitioner is incorrect. It bears for the purpose of the implementation of the writ of execution.[67]
stressing that the respondent was represented by Atty. Galicia and
Atty. Silvanio Liza whose offices were located in Davao City. The We do not believe that a practicing lawyer will simply
August 22, 2002 Order of the RTC denying the respondent’s allow the Sheriff to just leave copies of the orders of the court
motion for reconsideration of its decision was sent to said counsel especially an order on his motion for reconsideration on the bank
by registered mail. Service of the order on the manager of manager and waive his right to be served with copies thereof as
respondent MBTC and not on its counsel was not notice to the said
4
petitioner itself in the present case. A notice to a lawyer who that she is negligent in the protection of her cause, and she cannot
appears to have been unconscionably irresponsible cannot be pass the blame to the court which is not tasked to monitor the
considered as notice to his client.[38] Thus, petitioner is deemed to changes in the circumstances of the parties and their counsels.
have filed its petition for review on certiorari within the It is noteworthy that when petitioner came to know of the
reglementary period as alleged in its Reply. death of her counsel and upon obtaining the services of a new
counsel, petitioner instituted another action for the annulment of
the deed of sale between her and the heirs of Villamena, instead of
Salting v. Velez, G.R. No. 181930, January 10, 2011 questioning the MeTC decision through an action for annulment
FACTS: On October 7, 2003, respondents John Velez and Clarissa of judgment. Obviously, the annulment case instituted by petitioner
Velez filed a complaint[3] for ejectment against petitioner Milagros is separate and distinct from the ejectment case filed by
Salting. respondents obtained a favorable decision. respondents. She cannot, therefore, obtain relief through the
second case for alleged errors and injustices committed in the first
Thereafter, petitioner instituted an action before the Regional Trial case.
Court (RTC), Branch 153, for Annulment of Sale of the Property.
Petitioner claimed that she purchased the subject parcel of land With the foregoing disquisition, we find that the March
from Villamena as evidenced by a notarized document known as 28, 2006 MeTC decision had, indeed, become final and
Sale of Real Estate. She further explained that respondents were executory. A final and executory decision can only be annulled by
able to obtain title to the subject property through the fraudulent a petition to annul the same on the ground of extrinsic fraud and
acts of the heirs of Villamena. Finally, she averred that the lack of jurisdiction, or by a petition for relief from a final order or
decision in Civil Case No. 2524 had not attained finality as she judgment under Rule 38 of the Rules of Court. However, no
was not properly informed of the MeTC decision. Petitioner claims petition to that effect was filed. [14] Well-settled is the rule that once
that the MeTC decision was declared final and executory despite a judgment becomes final and executory, it can no longer be
the fact that the copy of the decision was served on her deceased disturbed, altered, or modified in any respect except to correct
counsel. clerical errors or to make nunc pro tunc entries. Nothing further
can be done to a final judgment except to execute it.[15]
the RTC, in an Order dated October 26, 2006, granted the writ of
preliminary injunction applied for.[6] In the present case, the finality of the March 28, 2006
decision with respect to possession de facto cannot be affected by
Aggrieved, respondents filed a special civil action the pendency of the annulment case where the ownership of the
for certiorari under Rule 65 of the Rules of Court before the CA. property is being contested. [16] We are inclined to adhere to settled
In a Decision[7] dated November 29, 2007, the CA resolved the jurisprudence that suits involving ownership may not be
issue in the affirmative. The appellate court concluded that successfully pleaded in abatement of the enforcement of the final
petitioner had no clear and unmistakable right to possession over decision in an ejectment suit.
the subject parcel of land in view of the March 28, 2006 MeTC
decision. Hence, contrary to the conclusion of the RTC, the CA
opined that petitioner was not entitled to the writ of preliminary Sec. 3. Manner of filing
injunction Section 3. Manner of filing. — The filing of pleadings,
appearances, motions, notices, orders, judgments and all other
Petitioner now comes before this Court in this petition for review papers shall be made by presenting the original copies thereof,
on certiorari under Rule 45 of the Rules of Court.
plainly indicated as such, personally to the clerk of court or by
Petitioner contends that the Court of Appeals disregarded the rule sending them by registered mail. In the first case, the clerk of court
that service of decision to a deceased lawyer is invalid and that the shall endorse on the pleading the date and hour of filing. In the
party must be duly served by the final judgment in order that the second case, the date of the mailing of motions, pleadings, or any
final judgment will become final and executory. The Court of other papers or payments or deposits, as shown by the post office
Appeals, likewise, disregarded the existence of a clear and existing stamp on the envelope or the registry receipt, shall be considered
right of the petitioner which should be protected by an injunctive as the date of their filing, payment, or deposit in court. The
relief and the rule that the pendency of an action assailing the right
envelope shall be attached to the record of the case. (1a)
of a party to eject will justify the suspension of the proceedings of
the ejectment case.
Russel v. Austria, G.R. No. 184542, April 23, 2010
ISSUE: WON the service was proper FACTS: The petition stems from a complaint for forcible entry
filed by petitioner Alma B. Russel against respondents Teofista
HELD: Ebasan and Agapito Austria. The Municipal Trial Court in Cities
We find no merit in the petition. (MTCC) of Iligan City heard the ejectment proceedings and
. rendered judgment on November 23, 2006 in favor of petitioner.
[3]
We first determine the validity of the service of the March The trial court ordered respondents to vacate the property
28, 2006 MeTC decision on petitioner’s counsel who, as of that involved and to pay attorney’s fees and costs.[4]
date, was already deceased. If a party to a case has appeared by
counsel, service of pleadings and judgments shall be made upon Prejudiced by the ruling, respondents appealed to the
his counsel or one of them, unless service upon the party himself is Regional Trial Court (RTC). The RTC, in its March 28, 2007
ordered by the court.[10] Thus, when the MeTC decision was sent Decision,[5] reversed the ruling of the MTCC and ordered the
to petitioner’s counsel, such service of judgment was valid and dismissal of the complaint.
binding upon petitioner, notwithstanding the death of her
counsel. It is not the duty of the courts to inquire, during the Petitioner received her copy of the RTC decision on April
progress of a case, whether the law firm or partnership continues to 13, 2007.[6] Inclined to appeal the adverse ruling to the CA,
exist lawfully, the partners are still alive, or its associates are still petitioner, on April 20, 2007, filed a motion for an extension of 15
connected with the firm.[11] Litigants, represented by counsel, days from the expiry of the reglementary period for the filing of a
cannot simply sit back, relax, and await the outcome of their case. petition for review. Petitioner attached to her motion postal money
[12]
It is the duty of the party-litigant to be in contact with her orders representing the filing and docket fees. [7] She consequently
counsel from time to time in order to be informed of the progress filed via registered mail her petition for review with the appellate
of her case.[13] It is likewise the duty of the party to inform the court on May 15, 2007.[8]
court of the fact of her counsel’s death. Her failure to do so means
Assailed ruling
6
In the assailed June 18, 2007 Resolution, [9] the CA dismissed period. Petitioner likewise attached to her motion postal money
the appeal on the following grounds: that it was filed out of time, orders representing the docket fees.
in violation of Sec. 1, Rule 42. Even if petitioner’s Motion for
Extension of Time to File Petition for Review were granted, the
Petition would have still been filed six (6) days late from the Fifteen days from April 28, 2007 would be May 13, 2007.
requested extension of time and there was no Written Explanation This was, however, a Sunday. May 14, 2007, the following day,
why the Petition was filed by mail instead of the preferred mode of was a legal holiday—the holding of the national and local
personal filing, as is required under Sec. 11, Rule 13. elections. Section 1 of Rule 22 states:
Petitioner received her copy of the June 18, 2007 Resolution on
July 18, 2007.[11] On July 27, 2007, petitioner filed by registered Sec. 1. How to compute time.—In
mail her motion for reconsideration and admission of her amended computing any period of time prescribed or
petition. She pointed out in her motion that the petition was filed allowed by these Rules, or by order of the court,
within the extended reglementary period. She also explained that or by any applicable statute, the day of the act or
her office clerk inadvertently failed to attach the page containing event from which the designated period of time
the explanation why filing by registered mail was resorted to. begins to run is to be excluded and the date of
The appellate court, however, in the assailed August 26, performance included. If the last day of the
2008 Resolution,[13] denied petitioner’s motion. It ruled that the period, as thus computed, falls on a Saturday, a
motion for reconsideration was filed only on October 4, 2007, or Sunday, or a legal holiday in the place where the
63 days after the expiry of the reglementary period for the filing court sits, the time shall not run until the next
thereof. working day.
Aggrieved, petitioner elevated the matter to this
Court via the instant petition for review on certiorari.
Therefore, when petitioner filed her petition for review with the
ISSUE: WON the petition was filed on time appellate court on May 15, 2007, the same was well within the
extended period for the filing thereof.
HELD: The Court grants the petition and remands the
case to the appellate court for disposition on the merits.
Petitioner’s motion for reconsideration was likewise filed on
time. She received a copy of the June 18, 2007 CA Resolution on
Petitioner’s petition for review (under Rule 42) and July 18, 2007. Under Section 1 of Rule 52, she had 15 days from
motion for reconsideration before the appellate court were filed notice, or until August 2, 2007, to file a motion for reconsideration.
[14]
well within the reglementary period for the filing thereof. Petitioner filed by registered mail her motion for
reconsideration on July 27, 2007. The fact of mailing on the said
date is proven by the registry return receipt, [15] the affidavit of
It must be noted that petitioner received her copy of the service,[16] and the certification of the Office of the Postmaster of
RTC decision on April 13, 2007. Following the Rules of Court, she Iligan City.[17] Section 3, Rule 13 of the Rules of Court[18] provides
had 15 days or until April 28, 2007 to file her petition for review that if a pleading is filed by registered mail, then the date of
before the CA. Section 1 of Rule 42 provides: mailing shall be considered as the date of filing. It does not matter
when the court actually receives the mailed pleading. Thus, in this
case, as the pleading was filed by registered mail on July 27, 2007,
Sec. 1. How appeal taken; time for within the reglementary period, it is inconsequential that the CA
filing.—A party desiring to appeal from a actually received the motion in October of that year.
decision of the Regional Trial Court rendered in
the exercise of its appellate jurisdiction may file As to the CA’s dismissal of the petition for review on the
a verified petition for review with the Court of ground that petitioner failed to attach a written explanation for
Appeals, paying at the same time to the clerk of non-personal filing, the Court finds the same improper. Iligan City,
said court the corresponding docket and other where petitioner resides and where her counsel holds office, and
lawful fees, depositing the amount of P500.00 Cagayan de Oro City, where the concerned division of the CA is
for costs, and furnishing the Regional Trial Court stationed, are separated by a considerable distance. The CA, in the
and the adverse party with a copy of the petition. exercise of its discretion, should have realized that it was indeed
The petition shall be filed and served within impracticable for petitioner to personally file the petition for
fifteen (15) days from notice of the decision review in Cagayan De Oro City. Given the obvious time, effort and
sought to be reviewed or of the denial of expense that would have been spent in the personal filing of the
petitioner’s motion for new trial or pleadings in this case, the written explanation why service had not
reconsideration filed in due time after judgment. been done personally, as required by Section 11 of Rule 13, may
Upon proper motion and the payment of the full be considered as superfluous.[19]
amount of the docket and other lawful fees and
the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may Heirs of Numeriano Miranda v. Heirs of Pedro Miranda, G.R.
grant an additional period of fifteen (15) days No. 179638, July 8, 2013
only within which to file the petition for review. FACTS: In 1994, petitioners representing themselves as the heirs
No further extension shall be granted except for of Numeriano Miranda, Sr., filed before the Regional Trial Court
the most compelling reason and in no case to (RTC) of Muntinlupa City, a Complaint 5 for Annulment of Titles
exceed fifteen (15) days. and Specific Performance against the heirs of Pedro Miranda.
After trial, the RTC, Branch 256, rendered a Decision sustaining
the validity of the title but ordering the respondent to indemnify all
On April 20, 2007, petitioner filed before the other heirs of NUMERIANO MIRANDA the amount equivalent to
CA, via registered mail, her motion for extension of time to file the 12/13 fair market value of the co-owned residential house of their
petition for review. She pleaded in her motion that she be granted share and for petitioner to vacate the house; and ordering partition
an additional 15 days, counted from the expiry of the reglementary among them of the properties of TRANQUILINO MIRANDA.
7
On December 11, 2001, the RTC issued a Writ of In this case, however, the counsel for petitioners filed the Notice of
Execution,9 which was not implemented. Appeal via a private courier, a mode of filing not provided in the
Rules. Though not prohibited by the Rules, we cannot consider the
On July 8, 2005, respondent filed an Ex-parte Motion11 praying filing of petitioners’ Notice of Appeal via LBC timely filed. It is
that the RTC issue a "Break-Open and Demolition Order" in order established jurisprudence that "the date of delivery of pleadings to
to compel the petitioners to vacate his property. 12 But since more a private letter-forwarding agency is not to be considered as the
than five years have elapsed from the time the Writ of Execution date of filing thereof in court;" instead, "the date of actual receipt
should have been enforced, the RTC denied the Motion in its by the court x x x is deemed the date of filing of that
Order. pleading."42 Records show that the Notice of Appeal was mailed on
the 15th day and was received by the court on the 16th day or one
This prompted respondent to file with the RTC a Petition 14 for day beyond the reglementary period. Thus, the CA correctly ruled
Revival of Judgment. Petitioners opposed the revival of judgment that the Notice of Appeal was filed out of time.
assailing, among others, the jurisdiction of the RTC to take
cognizance of the Petition for Revival of Judgment.15 Neither can petitioners use typhoon "Florita" as an excuse for the
belated filing of the Notice of Appeal because work in government
On June 20, 2006, the RTC rendered a Decision 16 granting the offices in Metro Manila was not suspended on July 13, 2006, the
Petition day petitioners’ Notice of Appeal was mailed via LBC.43
And even if we, in the interest of justice, give due course to the
On July 13, 2006, petitioners filed a Notice of Appeal via 18 appeal despite its late filing, the result would still be the same. The
LBC,19 which was opposed by respondent on the ground that the appeal would still be denied for lack of merit.
Decision dated August 30, 1999 has long become final and
executory.20 Petitioners, in turn, moved for the transmittal of the The Decision dated August 30, 1999 is already final and executory.
original records of the case to the CA, insisting that respondent’s
opposition is without merit.21 An action for revival of judgment is a new and independent
action.44 It is different and distinct from the original judgment
Finding the appeal barred by prescription, the RTC denied the sought to be revived or enforced. 45 As such, a party aggrieved by a
Notice of Appeal decision of a court in an action for revival of judgment may appeal
the decision, but only insofar as the merits of the action for revival
Feeling aggrieved, petitioners filed a Petition for Mandamus 24 with is concerned. The original judgment, which is already final and
the CA praying that their Notice of Appeal be given due course.25 executory, may no longer be reversed, altered, or modified.46
On June 14, 2007, the CA denied the Petition for Mandamus on the PNB v. CIR, G.R. No. 172458, December 14, 2011
ground that the Notice of Appeal was filed out of time FACTS: On February 8, 2001, PNB filed with respondent
Commissioner of Internal Revenue (CIR) an administrative claim
for refund in the amount of ₱6,028,594.00, which were payments
Hence, this recourse. Petitioners assert that an action to revive
made in excess of its income tax liability for 1998.
judgment is appealable,30 and that their appeal was perfected on
time.31 They insist that the Notice of Appeal, which they filed on
As BIR did not act upon PNB’s claim for refund, PNB, on March
the 15th day via LBC, was seasonably filed since the law does not
30, 2001, filed with the Second Division of the Court of Tax
require a specific mode of service for filing a notice of appeal.
Appeals (CTA Division) a Petition for Review.
Besides, even if their appeal was belatedly filed, it should still be In his Answer,[7] the CIR alleged that PNB’s claim for
given due course in the interest of justice, 33 considering that their refund/tax credit is subject first to an investigation and that it failed
counsel had to brave the storm and the floods caused by typhoon to establish its right to a refund.
"Florita" just to file their Notice of Appeal on time.34
On May 19, 2003, the BIR issued in PNB’s favor Tax
Petitioners further contend that their appeal is meritorious.35 They Credit Certificate No. SN 023837 for ₱4,154,353.42, leaving a
insist that it is the Metropolitan Trial Court (MeTC), not the RTC, balance of ₱1,874,240.58 out of PNB’s total claim of
which has jurisdiction over the Petition for Revival of Judgment ₱6,028,594.00. PNB then informed the CTA Division of such tax
since the amount in the tax declarations of the properties involved credit certificate, and manifested that its acceptance was without
is less than Fifty Thousand Pesos (P50,000.00).36 They likewise prejudice to recovering the balance of its total claim.[9]
assail the Decision dated August 30, 1999, claiming that the deeds
and certificates of title subject of Civil Case No. 94-612 were Consequently, the CIR filed a Motion, [10] asking that he be allowed
falsified to present evidence on PNB’s excluded claim. The CIR argued
that the amount of ₱1,874,240.58 was disallowed because it was
ISSUE: WON the appeal was filed on time not remitted to the BIR,
HELD: The Petition lacks merit. On August 11, 2005, the CTA Division rendered its Decision
ordering a REFUND in favor of herein petitioner in the
amount of ₱1,428,661.66 and disallowed eight transactions,
The Notice of Appeal was belatedly filed.
amounting to ₱445,578.92 which were already reported as income
for other years.
It is basic and elementary that a Notice of Appeal should be filed
"within fifteen (15) days from notice of the judgment or final order On September 14, 2005, PNB filed a Motion for Partial
appealed from."40 Reconsideration,[15] asserting its entitlement to be refunded the
amount of ₱445,578.92, by explaining each transaction involved
Under Section 3,41 Rule 13 of the Rules of Court, pleadings may be and pinpointed by the CTA Division. This however was still
filed in court either personally or by registered mail. In the first denied by the CTA Division.
case, the date of filing is the date of receipt. In the second case, the
date of mailing is the date of receipt. Aggrieved, PNB, filed a partial appeal by way of Petition for
Review[17] under Section 18 of Republic Act No. 9282[18]before the
8
CTA En Banc. This petition was received by the CTA En Banc on failure to comply with the formal requirements of the Revised
December 27, 2005, four days beyond the additional 15 days Rules of the Court of Tax Appeals and the Rules of Court in filing
granted to PNB to file its petition. a petition for review with the CTA En Banc.
copy in the post office, in a sealed envelope, regarding the payment of the docket and other
plainly addressed to the party or his counsel at lawful fees, the deposit for costs, proof of
his office, if known, otherwise at his residence, if service of the petition, and the contents of and
known, with postage fully pre-paid, and with the documents which should accompany the
instructions to the postmaster to return the mail petition shall be sufficient ground for the
to the sender after ten (l0) days if undelivered. If dismissal thereof. (Emphasis ours.)
no registry service is available in the locality
of either the sender or the addressee, service Anent the failure to attach the Affidavit of Service,
may be done by ordinary mail. (Emphasis Section 13, Rule 13 of the Rules of Court provides:
ours.)
Sec. 13. Proof of service. Proof of
Petition was not accompanied by the personal service shall consist of a written
required duplicate originals or certified admission of the party served, or the official
true copies of the decision and resolution return of the server, or the affidavit of the party
being assailed, and Affidavit of Service serving, containing a full statement of the date,
place and manner of service. If the service is by
The following provisions are instructive: ordinary mail, proof thereof shall consist of an
affidavit of the person mailing of facts showing
Section 2, Rule 6 of the Revised Rules of the Court of compliance with section 7 of this Rule. If service
Tax Appeals: is made by registered mail, proof shall be made
by such affidavit and the registry receipt issued
SEC. 2. Petition for review; contents. – by the mailing office. The registry return card
The petition for review shall contain allegations shall be filed immediately upon its receipt by the
showing the jurisdiction of the Court, a concise sender, or in lieu thereof the unclaimed letter
statement of the complete facts and a summary together with the certified or sworn copy of the
statement of the issues involved in the case, as notice given by the postmaster to the addressee.
well as the reasons relied upon for the review of
the challenged decision. The petition shall be Although the failure to attach the required affidavit of
verified and must contain a certification against service is not fatal if the registry receipt attached to the petition
forum shopping as provided in Section 3, Rule clearly shows service to the other party, [40] it must be remembered
46 of the Rules of Court. A clearly legible that this was not the only rule of procedure PNB failed to
duplicate original or certified true copy of the satisfy. InSuarez v. Judge Villarama, Jr.[41] we said:
decision appealed from shall be attached to
the petition. (Emphasis supplied.) It is an accepted tenet that rules of
procedure must be faithfully followed except
Section 4(b), Rule 8 of the Revised Rules of the Court of only when, for persuasive and weighting reasons,
Tax Appeals: they may be relaxed to relieve a litigant of an
Sec. 4(b) An appeal from a decision or resolution of the Court in injustice commensurate with his failure to
Division on a motion for reconsideration or new trial shall be taken comply with the prescribed
to the Court by petition for review as provided in Rule 43 of the procedure. Concomitant to a liberal
Rules of Court. The Court en banc shall act on the appeal. interpretation of the rules of procedure, however,
should be an effort on the part of the party
Sections 6, Rule 43 of the Rules of Court: invoking liberality to adequately explain his
failure to abide by the rules.[42]
Sec. 6. Contents of the petition. The
petition for review shall (a) state the full names
of the parties to the case, without impleading the This Court agrees with the CTA En Banc that PNB has not
court or agencies either as petitioners or demonstrated any cogent reason for this Court to take an exception
respondents; (b) contain a concise statement of and excuse PNB’s blatant disregard of the basic procedural rules in
the facts and issues involved and the grounds a petition for review. Furthermore, the timely perfection of an
relied upon for the review; (c) be accompanied appeal is a mandatory requirement. One cannot escape the rigid
by a clearly legible duplicate original or a observance of this rule by claiming oversight, or in this case, lack
certified true copy of the award, judgment, of foresight.
final order or resolution appealed
from, together with certified true copies of such
material portions of the record referred to therein Sec. 4. Papers required to be filed and served
and other supporting papers; and (d) contain a Section 4. Papers required to be filed and served. — Every
sworn certification against forum shopping as judgment, resolution, order, pleading subsequent to the complaint,
provided in the last paragraph of section 2, Rule written motion, notice, appearance, demand, offer of judgment or
42. The petition shall state the specific material
similar papers shall be filed with the court, and served upon the
dates showing that it was filed within the period
fixed herein. (Emphasis ours.) parties affected. (2a)
This Court has already upheld the mandatory character of See: Sec. 1, Rule 36
attaching duplicate originals or certified true copies of the assailed Section 1. Rendition of judgments and final orders. — A judgment
decision to a petition for review. [39] Moreover, pursuant to Section or final order determining the merits of the case shall be in writing
7, Rule 43 of the Rules of Court, non-compliance with such personally and directly prepared by the judge, stating clearly and
mandatory requirement is a sufficient ground to dismiss the distinctly the facts and the law on which it is based, signed by him,
petition, viz: and filed with the clerk of the court. (1a)
Sec. 7. Effect of failure to comply with
requirements. The failure of the petitioner to
comply with any of the foregoing requirements
10
Sec. 5. Modes of service Aguinaldo were denied by the RTC. [6] Aggrieved, the said
Section 5. Modes of service. — Service of pleadings motions, respondents elevated their case to the CA.
notices, orders, judgments and other papers shall be made either
Maj. Aguinaldo argued that he was deliberately deprived of the
personally or by mail. (3a)
opportunity to be heard and put up his defense, while Col. Singson,
Lt. Col. Lacson and Col. Abadilla
Aberca v. Ver, G.R. No. 166216, March 14, 2012
FACTS: several suspected subversives who were arrested and CA Ruling
detained by the military filed a complaint for damages with the On July 31, 2003, the CA rendered a decision reversing and setting
Regional Trial Court of Quezon City against Gen. Fabian Ver, then aside the RTC decision and ordering the case remanded to the RTC
AFP Chief of Staff and other subordinate officers. They allege they for further proceedings. The CA ruled, among others, that the RTC
were tortured during their detention. Defendants were then committed four (4) errors in declaring the respondents in default
represented by Solicitor General Estelito Mendoza who filed a and proceeding to hear the case. The RTC committed its first
motion to dismiss. error when it abandoned the proper modes of service of notices,
orders, resolutions or judgments as the petitioners failed to comply
The case was dismissed but EDSA Revolution happened during with its order dated August 17, 1990, directing them to report the
the pendency of petitioner’s certiorari proceedings before the addresses and whereabouts of the respondents so that they could be
Supreme Court. The Supreme Court annulled the order dismissing properly notified.
the case and remanded the case to the trial court for further
proceedings. The second error was the failure of the RTC to avail of
substituted service after failing to effect personal service or service
However, trial could not proceed immediately because on June 11, by mail. It perpetrated its third error when it authorized service by
1988, the record of the case was destroyed when fire razed the City publication after dismissing the case for failure of the petitioners to
Hall of Quezon City. It was only on October 9, 1989 when furnish the current addresses of the respondents. The CA reasoned
plaintiffs-appellees sought a reconstitution of the record of the out that there was nothing in the rules which would authorize
case. But the defendants were never served of the decision of the publication of a notice of hearing to file answer and for what was
Supreme Court and the new Solicitor General declined to represent authorized to be published were summons and final orders and
the defendants since it is not authorized to represent a public judgments. The fourth error was committed when the respondents
official at any stage of a criminal case or in a civil suit for damages were declared in default because they were not duly notified and,
arising from a felony. therefore, were denied due process.
Plaintiffs-appellees filed a motion to declare defendants-appellants Not satisfied, the petitioners come to this Court praying for the
in default which was denied because the defendants were not duly reversal and setting aside of the CA decision
notified of the decision of the Supreme Court. For failure of the
petitioners to submit the addresses of the defendants, the court The petitioners claim that the RTC did not err in declaring the
dismissed the case but it later reinstated the case and approved respondents in default and in allowing them to present evidenceex-
plaintiffs-appellees’ request to serve the notice to file answer or parte; that the respondents were represented by the OSG from
responsive pleading by publication. 1983 up to December 11, 1990 when the latter withdrew its
appearance from the case; that after the respondents had appeared,
In a compliance dated September 12, 1991, plaintiffs-appellees thru the OSG, by filing a motion to dismiss, the petitioners were
informed the trial court that the following notice was published in under no obligation to track down the respondents’ addresses since
the Tagalog newspaper BALITA in its issues of August 29, the Rules of Court provide that once a litigant is represented by
1991 and September 5, 1991 counsel, all notices, motions and pleadings must be sent to him as
counsel of record; that it is a matter of record that the OSG was
No answer was filed by defendants-appellants within the period furnished copies of all court orders and the petitioners’ pleadings
stated in the notice. On motion of plaintiffs-appellees, the trial for the period it remained as the respondents’ counsel of record or
court in its order dated December 5, 1991 declared defendants- from 1983 until the OSG withdrew on December 11, 1990; that as
appellants in default and directed plaintiffs-appellees to present counsel of record, the OSG was duty-bound to file the
their evidence ex-parte respondents’ answer to the complaint within 15 days from notice
that it was reinstated by this Court and the case was remanded to
Ruling of the RTC the RTC for further proceedings; and that despite having received
copies of this Court’s decision in G.R. No. 69866 on or about April
On February 19, 1993, the RTC handed down a decision in favor 20, 1988 and despite having been duly notified of the finality of
of the petitioners said decision by means of this Court’s Entry of Judgment, the OSG
did not file any answer or seek an extension of time to do so.
Subsequently, respondents Col. Fidel Singson (Col.
Singson), Lt. Col. Panfilo M. Lacson (Lt. Col. Lacson), and Col. The petitioners further argue that as early as May 1988, when this
Rolando Abadilla (Col. Abadilla) filed their Omnibus Motion Court’s decision became final and executory and the respondents
praying as follows: 1) that the order of default dated December 5, received notice thereof through their counsel of record, it was
1991 be reversed and set aside; 2) that the decision dated February incumbent upon them to have answered the complaint within the
19, 1993 be reversed and set aside; 3) that the entire proceedings period provided by the Rules of Court.
be declared null and void; and 4) that they be given fifteen (15)
days from notice to file answer to the complaint and present their Also, that the rule on service of summons by means of publication
evidence. Col. Gerardo B. Lantoria (Col. Lantoria) filed his own applies to service of summons by publication, not to notices to file
Motion for Reconsideration. answer by publication; that while service of summons by
publication entails acquiring jurisdiction over the person of the
On his part, respondent Maj. Rodolfo Aguinaldo (Maj. defendant, it was already obtained over the respondents in this case
Aguinaldo) failed to file a timely notice of appeal so he filed a by their voluntary appearance through counsel and their act of
Petition for Relief from Judgment filing a motion to dismiss on substantive grounds; that substituted
service was an exercise in futility because the respondents were no
The Omnibus Motion of Col. Singson, Lt. Col. Lacson longer holding the positions they were holding at the time the
and Col. Abadilla; the Motion for Reconsideration of Col. Gerardo petition was filed and, therefore, could not be reached at the
Lantoria; and the Petition for Relief from Judgment of Maj.
11
addresses indicated on the complaint; that the only remaining Section 11 is mandatory. In Solar
option was to notify the respondents by publication Team Entertainment, Inc. v. Judge Ricafort, the
Court held that:
ISSUE: WON there was proper service of the order
Pursuant x x x to Section 11 of Rule 13,
HELD: service and filing of pleadings and other papers
Rule 13 must, whenever practicable, be done personally;
SEC. 5. Modes of service.—Service of and if made through other modes, the party
pleadings, motions, notices, orders, judgments concerned must provide a written explanation as
and other papers shall be made either personally to why the service or filing was not done
or by mail. personally. x x x
SEC. 6. Personal service.—Service of Personal service and filing are preferred
the papers may be made by delivering personally for obvious reasons. Plainly, such should
a copy to the party or his counsel, or by leaving expedite action or resolution on a pleading,
it in his office with his clerk or with a person motion or other paper; and conversely, minimize,
having charge thereof. If no person is found in if not eliminate, delays likely to be incurred if
his office, or his office is not known, or he has service or filing is done by mail, considering the
no office, then by leaving the copy, between the inefficiency of postal service. Likewise, personal
hours of eight in the morning and six in the service will do away with the practice of some
evening, at the party’s or counsel’s residence, if lawyers who, wanting to appear clever, resort to
known, with a person of sufficient age and the following less than ethical practices: (1)
discretion then residing therein. serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the
SEC. 7. Service by mail.—Service by latter with little or no time to prepare, for
registered mail shall be made by depositing the instance, responsive pleadings or an opposition;
copy in the office, in a sealed envelope, plainly or (2) upon receiving notice from the post office
addressed to the party or his counsel at his office, that the registered parcel containing the pleading
if known, otherwise at his residence, if known, of or other paper from the adverse party may be
with postage fully prepaid, and with instructions claimed, unduly procrastinating before claiming
to the postmaster to return the mail to the sender the parcel, or, worse, not claiming it at all,
after ten (10) days if undelivered. If no registry thereby causing undue delay in the disposition of
service is available in the locality of either the such pleading or other papers.
sender or the addressee, service may be done by
ordinary mail. If only to underscore the mandatory
nature of this innovation to our set of adjective
SEC. 8. Substituted service.—If service rules requiring personal service whenever
of pleadings, motions, notices, resolutions, practicable, Section 11 of Rule 13 then gives the
orders and other papers cannot be made under court the discretion to consider a pleading or
the two preceding sections, the office and place paper as not filed if the other modes of service or
of residence of the party or his counsel being filing were resorted to and no written
unknown, service may be made by delivering the explanation was made as to why personal service
copy to the clerk of court, with proof of failure was not done in the first place. The exercise of
of both personal service and service by mail. The discretion must, necessarily, consider the
service is complete at the time of such delivery. practicability of personal service, for Section 11
itself begins with the clause "whenever
practicable."
The above rules, thus, prescribe the modes of service of
pleadings, motions, notices, orders, judgments, and other papers, We thus take this opportunity to clarify
namely: (1) personal service; (2) service by mail; and (3) that under Section 11, Rule 13 of the 1997 Rules
substituted service, in case service cannot be effected either of Civil Procedure, personal service and filing is
personally or by mail. the general rule, and resort to other modes of
service and filing, the exception. Henceforth,
The Rules of Court has been laid down to insure the whenever personal service or filing is
orderly conduct of litigation and to protect the substantive rights of practicable, in light of the circumstances of time,
all party litigants. It is for this reason that the basic rules on the place and person, personal service or filing
modes of service provided under Rule 13 of the Rules of Court ismandatory. Only when personal service or
have been made mandatory and, hence, should be strictly followed. filing is not practicable may resort to other
In Marcelino Domingo v. Court of Appeals, [14] the Court wrote: modes be had, which must then be accompanied
by a written explanation as to why personal
Section 11, Rule 13 of the Rules of Court states: service or filing was not practicable to begin
with. In adjudging the plausibility of an
SEC. 11. Priorities in modes of service explanation, a court shall likewise consider the
and filing. — Whenever practicable, the service importance of the subject matter of the case or
and filing of pleadings and other papers shall be the issues involved therein, and the prima facie
done personally. Except with respect to papers merit of the pleading sought to be expunged for
emanating from the court, a resort to other violation of Section 11. This Court cannot rule
modes must be accompanied by a written otherwise, lest we allow circumvention of the
explanation why the service or filing was not innovation introduced by the 1997 Rules in order
done personally. A violation of this Rule may be to obviate delay in the administration of justice.
cause to consider the paper as not filed.
xxxx
12
x x x [F]or the guidance of the Bench its August 17, 1990 order with the correct addresses of the
and Bar, strictest compliance with Section 11 respondents. More so, it should not have skipped the substituted
of Rule 13 is mandated. [Emphasis supplied] service prescribed under the Rules and authorized a service of
notice on the respondents to file answer by publication.
In the case at bench, the respondents were completely
deprived of due process when they were declared in default based In view of the peculiar circumstances surrounding the
on a defective mode of service – service of notice to file answer by case, the RTC should have instead directed the petitioners to exert
publication. The rules on service of pleadings, motions, notices, diligent efforts to notify the respondents either personally or by
orders, judgments, and other papers were not strictly followed in registered mail. In case the preferred modes were impractical, the
declaring the respondents in default. The Court agrees with the CA Court should have required the petitioners to at least report in
that the RTC committed procedural lapses in declaring the writing why efforts exerted towards personal service or service by
respondents in default and in allowing the petitioners to present mail failed. In other words, a convincing proof of an impossibility
evidenceex-parte. of personal service or service by mail to the respondents should
have been shown first. The RTC, thus, erred when it ruled that the
A review of the records discloses that after the Court publication of a notice to file answer to the respondents
rendered its April 15, 1988 Decision in G.R. No. 69866, annulling substantially cured the procedural defect equivalent to lack of due
the RTC orders dated November 8, 1983, May 11, 1984 and process. The RTC cannot just abandon the basic requirement of
September 21, 1984 and ordering the remand of the case to the personal service and/or service by mail.
RTC for further proceedings, the RTC issued an order [15] dated
August 17, 1990 directing the petitioners to report the addresses
and whereabouts of the respondents so that they would be properly
notified of the proceedings. This directive was issued by the RTC At any rate, the Court is of the view that personal service
considering that the respondents’ counsel of record, the OSG, to the respondents was practicable under the circumstances
could no longer represent them and because the respondents were considering that they were well-known persons who used to
no longer holding official government positions because of a occupy high government positions.
change in government brought about by the 1986 EDSA
Revolution. This order was likewise made in response to the To stress, the only modes of service of pleadings,
motion[16] filed by the petitioners praying that the respondents be motions, notices, orders, judgments and other papers allowed by
required to file their answer. the rules are personal service, service by mail and substituted
service if either personal service or service by mail cannot be
Instead of complying with the RTC’s directive to report made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of
the respondents’ addresses and whereabouts, the petitioners filed a Court. Nowhere under this rule is service of notice to file answer
motion[17] dated September 4, 1990 to declare the respondents in by publication is mentioned, much less recognized.
default. On December 27, 1990, the RTC denied the petitioners’
default motion because the respondents were not duly notified of Furthermore, the Court would like to point out that
the April 15, 1988 Decision of this Court and the OSG no longer service by publication only applies to service of summons stated
wanted to represent them. The RTC likewise ordered the under Rule 14 of the Rules of Court where the methods of service
petitioners to comply with its August 17, 1990 Order, otherwise, of summons in civil cases are: (1) personal service; [19] (2)
the case would be archived and eventually dismissed. On February substituted service;[20] and (3) service by publication. [21] Similarly,
1, 1991, the RTC denied the petitioners’ motion for service by publication can apply to judgments, final orders and
reconsideration and on March 7, 1991, it issued an order resolutions as provided under Section 9, Rule 13 of the Rules of
dismissing the case without prejudice. Court, as follows:
Surprisingly, on June 4, 1991, the RTC issued an SEC. 9. Service of judgments, final
order[18] setting aside its March 7, 1991 Order and reinstating the orders or resolutions. –Judgments, final orders or
case. It directed the petitioners, among others, to cause the resolutions shall be served either personally or
publication of a notice on the respondents to file answer or by registered mail. When a party summoned
responsive pleading. After the petitioners complied with the by publication has failed to appear in the
publication requirements, the RTC issued the order action, judgments, final orders or
dated December 5, 1991 declaring the respondents in default and resolutions against him shall be served upon
directing the petitioners to present evidence ex-parte. him also by publication at the expense of the
prevailing party. [Emphasis supplied]
As correctly observed by the CA, the RTC’s August 17,
1990 Order was an attempt to serve a notice to file answer on the As correctly ruled by the CA:
respondents by personal service and/or by mail. These proper and
preferred modes of service, however, were never resorted to Its third error was when it authorized
because the OSG abandoned them when the petitioners failed to service by publication after initially dismissing
comply with the August 17, 1990 RTC order requiring them to the case for failure of plaintiffs-appellees to
report the addresses and whereabouts of the respondents. furnish the current address of defendants-
Nevertheless, there was still another less preferred but proper mode appellants. There is, however, nothing in the
of service available – substituted service - which is service made Rules that authorizes publication of a notice of
by delivering the copy to the clerk of court, with proof of failure of hearing to file answer. What is authorized to be
both personal service and service by mail. Unfortunately, this published are: (1) summons, and (2) final orders
substitute mode of service was not resorted to by the RTC after it and judgments.
failed to effect personal service and service by mail. Instead, the
RTC authorized an unrecognized mode of service under the Rules,
which was service of notice to file answer by publication. Xxx xxx
xxx
Considering the fact that the OSG could no longer
represent the respondents, the RTC should have been more patient
in notifying the respondents through personal service and/or The above-quoted provision cannot be
service by mail. It should not have simply abandoned the preferred used to justify the trial court’s action in
modes of service when the petitioners failed to comply with authorizing service by publication. Firstly, what
13
was published was not a final order or judgment Garrucho v. Court of Appeals, G.R. No. 143791, January 14,
but a simple order or notice to file answer. 2005 (Supra.)
Secondly, even granting that the notice to file
answer can be served by publication, it is explicit Sec. 7. Service by mail
in the Rule that publication is allowed only if the Section 7. Service by mail. — Service by registered mail shall be
defendant-appellant was summoned by
made by depositing the copy in the post office in a sealed
publication. The record is clear that defendants-
appellants were not summoned by publication. envelope, plainly addressed to the party or his counsel at his office,
if known, otherwise at his residence, if known, with postage fully
On this point, the petitioners argue that the publication prepaid, and with instructions to the postmaster to return the mail
was a valid and justified procedure because following the ruling of to the sender after ten (10) days if undelivered. If no registry
the RTC, it was “an extra step to safeguard the interest of the service is available in the locality of either the senders or the
defendants done pursuant to the inherent power of the courts to addressee, service may be done by ordinary mail. (5a; Bar Matter
control its proceedings to make them comfortable to law and
No. 803, 17 February 1998)
justice.” The petitioners further argue that “the defendants in a
civil case cannot seize control of the proceedings or cause them to
be suspended indefinitely by the simple expedient of not filing
their answers or by feigning ignorance of the proceedings. All
Sec. 8. Substituted service
these could have been avoided had the defendants not been so
inexplicably complacent and utterly lacking in ordinary prudence.” Section 8. Substituted service. — If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under
The Court is not convinced. the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by
As already discussed above, the basic rules on modes of delivering the copy to the clerk of court, with proof of failure of
service of pleadings, motions, notices, orders, judgments, and other both personal service and service by mail. The service is complete
papers are mandatory in nature and, therefore, must be strictly
at the time of such delivery. (6a)
observed. The Court is not unaware of the inherent power of courts
to control its proceedings. Nonetheless, the exercise of such
Thermochem v. Naval, G.R. No. 131541, October 20, 2000
inherent power must not violate basic court procedures. More
importantly, it must not disregard one’s basic constitutional right to FACTS: Eduardo Edem, taxi driver of Luring Taxi owned by
procedural due process. respondent Leonora Naval, was traversing a U-turn when it was hit
by a Nissan Pathfinder driven by petitioner Jerome Casto .
This was precisely the reason for the RTC’s denial of the Private respondent, as owner of the taxi, filed a damage suit
petitioner’s default motion in its August 17, 1990 Order, and for against petitioner, Thermochem Incorporated, as the owner of the
the eventual dismissal of the case in its December 27, 1990 Order. Nissan Pathfinder, and its driver, petitioner Jerome Castro. After
trial, the lower court adjudged petitioner Castro negligent and
It must be noted that as the RTC orders stated, the ordered petitioners, jointly and severally, to pay private respondent
respondents were not notified of the April 15, 1988 Decision of damages.
this Court, which ordered the re-opening and remanding of this
case to the RTC. They were neither notified of the reconstitution On appeal, the Court of Appeals affirmed the judgment of the
proceedings that took place pertaining to the burned records of the court a quo.[4] Hence, this petition for review on certiorari. The
case. The RTC further stated that the respondents were no longer petition was denied on February 2, 1998 for failure to submit an
holding their official government positions and that they were no explanation why no personal service of copies of certain pleadings
longer represented by the OSG on account of the change in was made as required by Rule 13, Section 11 of the 1997 Rules of
government. In other words, the respondents had no counsel of Civil Procedure.[5] Upon petitioners' motion for reconsideration, the
record and no notice of subsequent proceedings. In short, due petition was reinstated and private respondent was required to file
process was absent. her Comment in a Resolution dated June 22, 1998.[6] A copy of the
said Resolution was sent by registered mail to private respondent's
Next, the court records got burned during the June 11, counsel but the same was returned to sender. [7] In a separate
1988 fire that hit the Quezon City Hall where the records were Resolution issued on the same date, this Court ordered that a copy
kept. OnMarch 12, 1990, the RTC granted the petitioners’ petition of the June 22, 1998 Resolution be served personally on private
for reconstitution. Again, the records do not show that the RTC respondent's counsel.[8] As the said Resolution was also returned
initiated extra efforts to notify the respondents about the unserved, "the Court Resolved to consider the said Resolution as
reconstitution proceedings. The entire records of this case tend to SERVED."[9] After more than a year, no Comment has been
show that the respondents were completely out of the picture until filed. Considering that private respondent was given only ten (10)
after the promulgation of the RTC decision. days to file her Comment, that period had already lapsed ten days
after the June 23, 1999 Resolution which stated that the June 22,
On countless occasions, the Court ruled that, generally, judgments 1998 resolution as "served".
by default are looked upon with disfavor and are frowned upon as
contrary to public policy.
ISSUE: WON the petitioner is liable for its negligence
Sec. 6. Personal service HELD: Yes. the assailed decision is MODIFIED. Petitioners are
Section 6. Personal service. — Service of the papers may be made ordered to pay, jointly and severally, to private respondent the
by delivering personally a copy to the party or his counsel, or by amount of P23,925.00 as actual damages. All other awards are
leaving it in his office with his clerk or with a person having DELETED.
charge thereof. If no person is found in his office, or his office is
Service of notice or other pleadings which are required by the rules
not known, or he has no office, then by leaving the copy, between to be furnished to the parties must be made on their last address on
the hours of eight in the morning and six in the evening, at the record. If they are represented by counsel, such notices shall be
party's or counsel's residence, if known, with a person of sufficient sent instead to the counsel's last given address on record in the
age and discretion then residing therein. (4a) absence of a proper and adequate notice to the court of a change of
14
address,[10] unless service upon the party himself is ordered by the ground that the decision is not yet final and executory for lack of
court.[11] It is the party and his counsel's responsibility to device a valid service thereof.
system for the receipt of mail intended for them[12] just as it is the Said motion was
duty of counsel to inform the court of a change in his address. In opposed by petitioners, who insisted that said decision is already
the case at bar, private respondent's counsel never notified the final and executory, and Atty. Alivio has no personality to file said
Court of any change of his address or whether he no longer holds motion for want of formal substitution of counsel as required by
office in his last address of record. Neither was the Court informed the Rules.
if his ties with his client has been severed. Insofar as the Court is
concerned, the last address on record is the place where all notices Since Branch V was then vacant, the motion for reconsideration
shall be served until the Court is officially informed to the was resolved by Branch VI, presided over by the respondent judge
contrary. What is the effect of the failure of a private respondent to who, on January 28, issued the herein assailed Order setting aside
comply with a court order to file Comment? the Order of execution and quashing the writ issued thereunder.
Courts are given the option to dispense with the filing of the
Comment and consider the case as deemed submitted for Petitioners' motion for reconsideration filed against the above
decision. Under Rule 46, Section 7 of the 1997 Rules of Civil order of respondent judge having been denied, this petition was
Procedure,[13] when the respondent in an original action filed with filed.
the court fails to file its comment, the case may be decided on the
basis of the evidence on record without prejudice to disciplinary ISSUE: WON there was valid service
action against the disobedient party. Concomitant thereto is the
rule that pursuant to Rule 51, Section 1(B)(1), [14] where no HELD:
comment is filed upon the expiration of the period to comment in
an original action or a petition for review, the case shall be deemed We find the petition to be meritorious. That the decision of the trial
submitted for decision. Both provisions are applicable to a petition court was received by the wife of Atty. Romeo Gonzaga, private
for review filed with the Supreme Court as provided in Rule 56, respondents' counsel of record at his given address on November
Section 2(a) of the Rules.[15] Moreover, a lawyer who fails to 23, 1979, is not disputed. It is likewise not disputed that said wife
submit the required Comment manifests willful disobedience to a has been receiving prior notices of the case for her husband at the
lawful order of the Supreme Court, a clear violation of the Canon office of the latter, who had always acted as if he had received said
of Professional Ethics.[16] Counsel must remember that his actions notices himself for he had duly complied therewith. With these
and omissions are binding on his client. [17] He should not neglect facts, no other ruling can be had but that the service of the decision
legal matters entrusted to him as his negligence therefrom shall in question is valid and binding. It is fully being in accordance
render him liable.[18] with Rule 13, Section 4, on personal service, said wife being of
sufficient discretion to receive notice of final judgment.
Cubar v. Mendoza, G.R. No. 55035, February 23, 1983 Private respondents argue that said service is not valid because
FACTS: Petitioners filed a complaint with the Court of First Atty. Gonzaga had left Cebu City, his address of record, and has
Instance of Cebu, assigned to Branch V thereof, then presided by resided in Legaspi City. It is already well settled rule that when a
Judge Mariano A. Zosa, docketed as Civil Case No. R- 15607, for party is represented by counsel, notice should be made upon the
the nullification of certain documents. counsel of record 1 at his given address, to which notices of all
kind emanating from the court should be sent in the absence of a
Petitioners signed a document they were told was for a right of proper and adequate notice to the court of a change of
way for the government with the inducement that once operational, address. 2 Petitioner's argument, likewise, fails to consider the need
each landowner shall be entitled to a royalty of P.30 per ton of of observing a legal formality before a counsel of record may be
minerals loaded in trucks passing through their respective lots, considered relieved of his responsibility as such counsel on
which documents, however, turned out to be alleged authorizations account of withdrawal. This legal formality is that a lawyer's
for entry into their 'lets by private respondents for the purpose of withdrawal as counsel must be made in a formal petition filed in
exploring rich rock phosphate deposits, and on the basis of said the case, without which, notice of judgment rendered in the case
documents, private respondents were granted by the Bureau of served on the counsel of record, is, for all legal purposes notice to
Mines permits to exploit and develop the mineral resources in the client, the date of receipt of which is considered the starting
petitioners' land to the exclusion of the latter. point from which the period of appeal prescribed by law shall
begin to run. 3 Not having withdrawn formally as counsel in the
case, Atty. Romeo Gonzaga continued to be the counsel of
After hearing on the merits and the case submitted for decision, the record 4 and was, for all legal purpose, private respondents'
trial court rendered judgment on October 1, 1979 declaring the attorney upon whom the court's processes may be served, as they
subject documents null and void, and adjudging private were in fact duly served.
respondents liable to pay damages to petitioners. A copy of said
decision was served to Atty. Romeo Gonzaga, private respondents' Consequently, the decision of the trial court, copy of which was
counsel of record and was received his wife at his given address on served upon respondents' counsel on November 23, 1979, is
November 23, 1979. already final and executory at the time the order of execution was
issued on January 8, 1980, no appeal having been taken therefrom
No appeal having been duly perfected within the reglementary within the reglementary period provided by law. Time and again,
period provided by law, petitioners filed on January 7, 1980 a this court has ruled that once a judgment becomes final and
motion for the issuance of a writ of execution, which was granted executory, the prevailing party can have it executed as a matter of
by the trial court in its Order of January 8, 1980, right, and the granting of execution becomes a ministerial duty of
the court. 5 Therefore, respondent judge gravely abused his
discretion in issuing the herein questioned order, in the absence of
On January 12, 1980 or four days after the issuance of the order of any justification, both legal and factual, that would warrant the stay
execution, Branch V became vacant with the appointment of Judge of execution.
Zosa to the Court of Appeals.
The claim of private respondents that the present petition was filed
On January 14, 1980, private respondents, through a new lawyer, late 2 months and 29 days after the assailed order was issued, is
Atty. Ponciano H. Alivio, filed a motion for reconsideration of the without any merit. This is a special civil action of certiorari and
Order of January 8, 1980 and to quash the writ of execution, on the
15
prohibition which may be filed within a reasonable period, no time ISSUE: WON the service was defective
frame for its filing having been fixed by Rule 65, Rules of Court.
HELD:
Mojar v. Agro Commercial Security, G.R. No. 187188, June 27, Affidavit of Service
2012
FACTS: Petitioners were security guards employed by respondent Section 3, Rule 46 provides that the petition for certiorari should
assigned to the various branches of the Bank of Commerce in be filed together with the proof of service thereof on the
Pangasinan, La Union and Ilocos Sur.. They failed to report to their respondent. Under Section 13, Rule 13 of the Rules of Court, if
new assignments in Metro Manila prompting respondents to send a service is made by registered mail, as in this case, proof shall be
letter requiring a written explanation. made by an affidavit of the person mailing and the registry receipt
issued by the mailing office. Section 3, Rule 46 further provides
Petitioners then filed a complaint for illegal dismissal against
respondent and the Bank of Commerce, Dagupan Branch, before that the failure to comply with any of the requirements shall be
the National Labor Relations Commission (NLRC). Petitioners sufficient ground for the dismissal of the petition.
claimed, among others, that their reassignment was a scheme to
sever the employer-employee relationship and was done in Petitioners allege that no affidavit of service was attached to the
retaliation for their pressing their claim for salary differential in a CA Petition. Neither is there any in the copy of the CA Petition
prior case and that the transfer to Manila was inconvenient and attached to the instant Petition. In its Comment, respondent claims
prejudicial, since they would incur additional expenses for board
that petitioners – through their counsel, Atty. Aglipay – can be
and lodging.
charged with knowledge of the pendency of the CA Petition. It
The LA ruled in favor of petitioners. On appeal, the NLRC says that on April 2008, Atty. Aglipay filed before the NLRC an
affirmed with modification by absolving the Bank. Entry of Appearance and Motion for Execution Pending Appeal.
[16]
However, petitioners merely indicated therein that they were
On 23 January 2008, respondent filed a Motion for Extension to “respectfully mov[ing] for the execution pending appeal of the
file a Petition for Certiorari before the CA. In a Resolution dated Labor Arbiter’s decision dated 22 May 2006 affirmed by the
20 February 2008, the latter granted the Motion for Extension,
allowing respondent until 10 February 2008 within which to file its NLRC.”[17] There was no indication that they had been served a
Petition. On 9 February 2008, respondent filed its Petition for copy of the CA Petition. No other proof was presented by
Certiorari before the appellate court. respondent to show petitioners’ actual receipt of the CA Petition.
In any case, this knowledge, even if presumed, would not – and
On 30 June 2008, the CA issued a Resolution noting that no could not – take the place of actual service and proof of service by
comment on the Petition had been filed, and stating that the case respondent.
was now deemed submitted for resolution.
On 21 July 2008, the CA rendered its Decision in favor of In Ferrer v. Villanueva,[18] petitioner therein failed to append the
respondent ruling that the transfer was a valid exercise of proof of service to his Petition for Certiorari. Holding that this
management prerogative. failure was a fatal defect, the Court stated:
following: CA Resolution dated 20 February 2008 granting inquire about the status of their case. Allegedly, they “always
respondent’s Motion for Extension of Time to file the CA Petition; visited the Court of Appeals for [the] development of their
CA Resolution dated 24 April 2008 requiring petitioners to file case.”[26]It is doubtful that a person who regularly follows up the
their Comment on the CA Petition; and CA Resolution dated 30 status of his case before a court would not be told, first, that a
June 2008, submitting the case for resolution, as no comment was petition has been filed against him; and, second, that the court’s
filed. resolutions have been sent to his counsel. It is questionable why,
knowing these matters, petitioners did not seek the replacement of
Such service to Atty. Espinas, as petitioners’ counsel of record, their counsel, if the latter was unable to pursue their case. Further,
was valid despite the fact he was already deceased at the time. If a despite their manifestation that, sometime prior to 31 July 2008,
party to a case has appeared by counsel, service of pleadings and they were already aware that the case had been submitted for
judgments shall be made upon his counsel or one of them, unless resolution, they still waited until 9 September 2008 – or until they
service upon the party is specifically ordered by the court. It is not allegedly had knowledge of the CA Decision – before they filed
the duty of the courts to inquire, during the progress of a case, the Motion to Annul Proceedings.
whether the law firm or partnership representing one of the
litigants continues to exist lawfully, whether the partners are still In Ampo v. Court of Appeals,[27] this Court explained the vigilance
alive, or whether its associates are still connected with the firm.[20] that must be exercised by a party:
It is the duty of party-litigants to be in contact with their counsel We are not persuaded by petitioner’s argument that he
from time to time in order to be informed of the progress of their was not aware that his counsel had died or that an adverse
case. It is likewise the duty of parties to inform the court of the fact judgment had already been rendered until he received the
of their counsel’s death.[21] Their failure to do so means that they notice of promulgation from the RTC of Butuan City on
have been negligent in the protection of their cause. [22] They cannot April 20, 2005. Time and again we have stated that equity
pass the blame to the court, which is not tasked to monitor the aids the vigilant, not those who slumber on their rights.
changes in the circumstances of the parties and their counsel. Petitioner should have taken it upon himself to
periodically keep in touch with his counsel, check with
Substitution of Counsel the court, and inquire about the status of the case. Had
Petitioners claim that Atty. Espinas passed away on 8 February petitioner been more prudent, he would have found out
2008. They further claim that he was already bedridden as early as sooner about the death of his counsel and would have
December 2007, and thus they “failed to get any information taken the necessary steps to prevent his present
whether [he] was served with a copy of the [CA Petition].”[23] predicament.
Petitioners were negligent in the conduct of their litigation. Having x x x x x x x xx
known that Atty. Espinas was already bedridden as early as
December 2007, they should have already obtained new counsel Litigants who are represented by counsel should not expect that all
who could adequately represent their interests. The excuse that they need to do is sit back, relax and await the outcome of their
Atty. Aglipay could not enter his appearance before the CA cases. Relief will not be granted to a party who seeks avoidance
“because [petitioners] failed to get [their] folder from the office of from the effects of the judgment when the loss of the remedy at
Atty. Espinas”[24] is flimsy at best. law was due to his own negligence. The circumstances of this case
plainly show that petitioner only has himself to blame. Neither can
The requirements for a valid substitution of counsel have been he invoke due process. The essence of due process is simply an
jurisprudentially settled in this wise: opportunity to be heard. Due process is satisfied when the parties
are afforded a fair and reasonable opportunity to explain their
Under Section 26, Rule 138 of the Rules of Court and respective sides of the controversy. Where a party, such as
established jurisprudence, a valid substitution of counsel petitioner, was afforded this opportunity to participate but failed to
has the following requirements: (1) the filing of a written do so, he cannot complain of deprivation of due process. If said
application for substitution; (2) the client's written opportunity is not availed of, it is deemed waived or forfeited
consent; (3) the consent of the substituted lawyer if such without violating the constitutional guarantee.
consent can be obtained; and, in case such written consent
cannot be procured, (4) a proof of service of notice of In this case, petitioners must bear the fruits of their negligence in
such motion on the attorney to be substituted in the the handling of their case. They may not decry the denial of due
manner required by the Rules. Where death of the process, when they were indeed afforded the right to be heard in
previous attorney is the cause of substitution of the the first place.
counsel, a verified proof of the death of such attorney
(usually a death certificate) must accompany the notice of
appearance of the new counsel.[25] Sec. 9. Service of judgments, final orders, or resolutions
Section 9. Service of judgments, final orders, or resolutions. —
The fact that petitioners were unable to obtain their folder from Judgments, final orders or resolutions shall be served either
Atty. Espinas is immaterial. Proof of service upon the lawyer to be personally or by registered mail. When a party summoned by
substituted will suffice where the lawyer’s consent cannot be publication has failed to appear in the action, judgments, final
obtained. With respect to the records of the case, these may easily orders or resolutions against him shall be served upon him also by
be reconstituted by obtaining copies thereof from the various publication at the expense of the prevailing party. (7a)
courts involved.
Aberca v. Ver, G.R. No. 166216, March 14, 2012 (Supra.)
Petitioners allegedly went to the CA sometime prior to 31 July
2008, or the date of filing of their Manifestation before the CA, to
17